FILED
NOT FOR PUBLICATION AUG 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ODILON ALBARRAN, No. 13-56403
Petitioner - Appellant, D.C. No. 3:11-cv-00019-BTM
v.
MEMORANDUM**
MICHAEL F. MARTEL,* Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, Chief Judge, Presiding
Submitted August 13, 2014***
Before: SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.
California state prisoner Odilon Albarran appeals pro se from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Michael F.
Martel is substituted for his predecessor, L.S. McEwen, as Warden.
**
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 2253. We review de novo the district court’s
decision to deny a habeas petition, see Rhoades v. Henry, 598 F.3d 495, 500 (9th
Cir. 2010), and we affirm.
Albarran contends that a prosecution witness’s improper reference to
Albarran’s status as a convicted felon constituted prosecutorial misconduct that
denied him a fair trial. The trial court admonished the jury to disregard the
statement. The California Court of Appeal’s conclusion that Albarran was not
prejudiced by the statement was neither contrary to, or an unreasonable application
of, clearly established law as determined by the United States Supreme Court, nor
based on an unreasonable determination of the facts in light of the state court
record. See 28 U.S.C. § 2254(d); Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir.
2012) (habeas relief will only be granted if a petitioner can establish that the
prosecutorial misconduct “‘had a substantial and injurious effect or influence in
determining the jury’s verdict’” (quoting Brecht v. Abrahamson, 507 U.S. 619, 637
(1993))).
Albarran’s request to expand the certificate of appealability is denied. See
28 U.S.C. § 2253(c)(2); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999)
(per curiam).
AFFIRMED.
2 13-56403